11
2. SO-CALLED PUBLIC THING AS AN OBJECT OF
“PUBLIC OWNERSHIP”
The issue of the so-called public thing presents a question which should
not be omitted when talking about this topic. ,' ( '- ( * '- ' ( ) . /
has already labeled “one of the most disputable disciplines of public law ”4
and which lies “in the center of the private and public law intersection”.
This issue is characterized by its sensitive reactions to the state of society,
to, let’s say, “rivalry and its social and liberal tendencies” leading to either
making the law more public or, to the contrary, the privatization of the
law5
. It is no surprise that these law changes in stressing its public character
are again and again opening or newly postulating questions concerning
content and extent of the concept of the public thing. When the public
character of law predominates, the public thing stops to be recognized as
a mixed-law institute [as a thing viewed as “common” object of (private)
ownership right, but restricted only by the public purpose it is dedicated to
fulfill]. Only its public dedication is stressed out which leads to belittling or
even negating the ownership right of a specific owner.6
4
) &*0 ' 1 2( *3 a 4 3 )1( Vol. II. Prague : F. Simacek,
Publisher, 1886, p- 184, note 9.
5
Closer to the topic see Havlan, P. op. cit. sub 1, p. 44-47.
6
From the historical point of view the latter occurred in two theoretical concepts. The first
of the two operates with the “emission” of the so-called supreme right (Hoheitsrecht),
respectively of police right (Polizeirecht) and excludes (denies) ownership of public things
completely [its French analogy is represented by the concept of „mere“ police and
administration (la garde et surintendance, respectively la police et administration) of the
state over public domain (domaine publice)]. The second, from theoretical point of view,
may be more interesting and elegant (but in praxis of no greater importance than what
Hoetzel had already mentioned), independent in its design public ownership of public things
conception as public law ownership (the name of a famous German scientist Otto Mayer,
who studied public administration, is usually cited in the first place when speaking of the
above mentioned theory – see Mayer, O. Deutsches Verwaltungsrecht. II. Bd. Leipzig :
Duncker Humblot, 1896, p. 60 and up). The so-called civil right conception of ownership
represents the inherent counteract of the above mentioned public law conceptions. For more
on this topic see Ibidem p. 62-68 and literature cited therein.
12 Public Property in the Czech Republic
Concerning the public thing, it is worth mentioning that literature has
provided a lot of classifications and different enumerations of particular
public things. It was justifiably stated, that “the question of defining
a specific thing as public might be answered only when taking into account
that particular state and time. Everything depends on that particular level of
economic and social development and its influence on legal order and
administrative practices.”7
Despite of various classifications of public
things and despite of the previous statement, we might say that there exist
something like:
− financial (or fiscal) property [important for its capital value and/or
revenue],
− administrative property (used directly for the purposes of public administration
– administrative buildings, company cars, equipment
and so forth)8
, and
− things in common use (in other words so called public domain);
these might be, concerning the above mentioned “making law more
public” conceptions as the most typical public things.
That means that despite the considerable teleological dimension of the
institute of public thing, it is necessary to take the public thing institute into
account in certain circumstances.
It is hard to doubt that the subject matter of public ownership (as defined
in sub.1) is not influenced by the type of “public thing”, therefore, by
its object. Naturally, the scope and character of rights and legal obligations
differs when the object of ownership is represented by a thing of financial
thing type or by a thing in common use. Distinct differences might be
found even within these “groups” of things. For the sake of clarity, it is
7
Janovský, J. ( %- & ' ( ' ) 5 ) 6 '*3(* )- 3* %'
' * " & * ! (( a 761 ku). 1st
ed. Prague : Nákladem knihovny sborníku
63 ) - a státních, 1927, p. 23.
8
Undoubtedly, there exist “borderline” things having several features of a finance property
and several features of an administrative property at the same time. For example, rental
houses which bring profit to their owners (thus we can think of this property as of “finance
property”) and at the same time they fulfill the “administrative role” (prescribed to municipalities
by law) of satisfying citizens’ demand (especially of the socially weak citizens) for
accommodation (thus we can think of this property as the “administrative property” as well).
13
possible to say that public law regulations concerning a specific type of
public thing could be sometimes complementary to private law regulations,
other times it could be vice versa. Essentially, this (basically only quantitative)
correlation should work on the basis of relation between general (private)
law and special (public) law, naturally concerning relativity of the
classification itself and the fact that it usually fades.